October 11, 2007
VES-3-02-OT:RR:BSTC:CCI H018186 LLBCATEGORY:CARRIER
Mr. Andre Magalhaes
Director, Marine Operations
Hamburg Sud North America, Inc.
465 South Street
Morristown, New Jersey 07960-6439RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); shoreside operations assistant; HQ H008510 (Mar. 22, 2007); HQ H008513 (Mar. 23, 2007); HQ H010696 (May 9, 2007); HQ H010662 (May 9, 2007); HQ H013452 (June 29, 2007); HQ H013701 (July 10, 2007)
Dear Mr. Magalhaes:
This letter is in response to your correspondence dated October 2, 2007, which this office received via electronic mail on October 9, 2007, as well as your as your electronic mail message of October 11, 2007. In your correspondence, you inquire about the coastwise transportation of a shoreside operations assistant aboard the CAP SAN ANTONIO 53S. Our decision follows.FACTS
The voyage in question involves the transportation of the subject individual, a shoreside operations assistant, aboard the non-coastwise-qualified CAP SAN ANTONIO 53S (the “vessel”) from New York, New York to Charleston, South Carolina. The individual is expected to embark in New York on October 14, 2007 and disembark in Charleston on October 18, 2007. The subject individual will be transported aboard the vessel to “understand the company and its role in the shipping and logistic industry” and to “gain a firm understanding of stowage and planning, planning system, navigational considerations, hazardous materials, and a brief overview of vessel dynamics.”ISSUE
Whether the individual described in the FACTS section above is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)
LAW and ANALYSIS
Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.”
The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. See 33 C.F.R. § 2.22(a)(2). The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103
Recodified by Pub. L. 109-304, enacted on October 6, 2006. which provides:
(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. (b)Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.
The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.
19 C.F.R. § 4.50(b).
In HQ H008510 (Mar. 22, 2007) and HQ H008513 (Mar. 23, 2007), CBP held that shipping agency trainees transported aboard a vessel “to observ[e] daily life on a vessel and gain[] better insight about what their colleagues [that] work[] on a vessel actually do” or “observe what goes on during a vessel’s voyage” were passengers within the meaning of 46 U.S.C. § 55103 insofar as the trainees were not “directly and substantially” See HQ 116721, supra; and see HQ 116659 (May 19, 2006)(referencing the “direct and substantial” test). connected with the operation, navigation, ownership or business of the vessel itself. See also, HQ H010696 (May 9, 2007) and HQ H010662 (May 9, 2007)(holding that shipping agencies’ human resources manager and ship broker’s trainee, respectively, transported coastwise “to observe shipboard operations” were passengers within the meaning of 46 U.S.C. § 55103); HQ H013452 (June 29, 2007)(holding that transporting a stevedore for training purposes was not “directly and substantially” related to the operation or business of the vessel itself); HQ H013701 (July 10, 2007)(holding that customer service auditors and sales representatives transported to “familiarize staff with shipboard operations” were passengers within the meaning of 46 U.S.C. § 55103.).
Similarly, in the present case, you propose to transport a shoreside operations assistant to representatives aboard certain vessels to “understand the company and its role in the shipping and logistic industry.” Although familiarizing a shoreside operations assistant with vessel operations may foster the business of the shipping company, it does not connect this individual directly and substantially with the business of the vessel itself. To the extent that the subject individual would not have been engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be “directly and substantially” related to the operation or business of the vessel itself, such individual would be considered a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b).HOLDING
The shoreside operations assistant is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of that individual would be in violation of 46 U.S.C. § 55103.
Sincerely,
Glen E. Vereb
Chief